CEO 82-62 -- July 29, 1982
CONFLICT OF INTEREST
REIMBURSEMENT OF EXPENSES INCURRED BY ASSISTANT STATE ATTORNEY
To: The Honorable Jerry M. Blair, State Attorney, Third Judicial Circuit
A prohibited conflict of interest exists where a part- time assistant state attorney who maintains a private law practice receives a monthly office allowance for reimbursement of expenses connected with the use of his law office in an official capacity. Section 112.313(3), Florida Statutes, prohibits a public employee from acting in a private capacity to rent, lease, or sell any realty, goods, or services to his own agency. Unlike the payment of travel expenses to an employee, as referenced in CEO 80-22 and CEO 79-3, here there does not appear to be any provision of law which expressly permits a public employee to provide his office space, utilities, telephone service, and library services for his agency under an agreement that he will receive a lump sum payment for those expenses.
Does a prohibited conflict of interest exist where a part-time assistant state attorney who maintains a private law practice receives a monthly office allowance for reimbursement of expenses connected with the use of his law office in an official capacity?
Your question is answered in the affirmative.
In your letter of inquiry you advise that as State Attorney you have employed two part-time Assistant State Attorneys who maintain offices in their respective cities for their private law practices. As there are no other State Attorney offices in those cities, their offices function as facilities for criminal intake, including "walk- in" complainants. You also advise that in addition to their regular salaries, each of the two Assistants receives an office allowance of $150 per month. This allowance is designed to reimburse them for expenses connected with their duties as Assistant State Attorneys, including such expenses as office space, utilities, telephone, and library services. Each month, pursuant to written letters of understanding with the Assistants, each of them invoices the State Attorney's office for $150 to cover these expenses. A State warrant is paid to each of them from funds contributed by the counties within the Judicial Circuit pursuant to Section 27.34(2), Florida Statutes, which requires counties to provide office space, utilities, telephone service, custodial services, library services, transportation services, and communications services for the State Attorney's Office.
The Code of Ethics for Public Officers and Employees prohibits a public officer or employee from acting in a private capacity to rent, lease, or sell any realty, goods, or services to his own agency. Section 112.313(3), Florida Statutes. In our view, this provision potentially applies to the situation you have described because the subject Assistant State Attorneys have entered into agreements with you, and not with the counties, to provide office space, utilities, telephone, and library services for the benefit of the State Attorney's Office.
However, we previously have advised that so long as a public employee's expenses are incurred in accordance with law and reimbursement for those expenses is made in accordance with law, Section 112.313(3) would not apply. See CEO's 80-22 and 79-3. In other words, where an agency pays its employee for goods, services, or facilities of the employee or of a business entity with which the employee is associated, there is a potential violation of Section 112.313(3), unless it can be shown that the payment is authorized by law. Thus, in CEO 79-3, we found that Section 112.313(3) prohibited a Deputy Sheriff from leasing his personal vehicle to the Sheriff's Office. Nevertheless, since the travel law expressly allowed an agency to pay its employee for the use of a personal vehicle on official business, we found that payments authorized by and made in accordance with the travel law would not violate Section 112.313(3).
We do not doubt that Section 112.313(3) would prohibit an Assistant State Attorney from leasing space in a building owned by him to the State Attorney's Office. Since an Assistant State Attorney is not an employee of a county, Section 112.313(3) would not prohibit him from leasing office space or providing services to the county. However, that is not the situation here; the agreements are between your office and the Assistant State Attorney. In addition, we are not aware of any provision of law, analogous to the travel law, which expressly permits a public employee to provide his office space, utilities, telephone service and library services for his agency under such an agreement and to receive such a lump sum payment for those expenses.
Accordingly, we find that a prohibited conflict of interest exists where the subject Assistant State Attorneys receive a monthly office allowance for reimbursement of expenses connected with the use of their offices. However, we are of the opinion that the Code of Ethics would not prohibit similar payments to the Assistant State Attorneys for reimbursement of actual expenses incurred in the performance of their official duties. Nor would the Code of Ethics prohibit payment directly from the counties involved under agreements between the Assistant State Attorneys and the counties, as noted above.